Maddox v. Bramlett

Bleckley, Chief Justice. 1. According to the complaint filed by the plaintiffs below, Mrs. Maddox had an agreement with her two brothers, Aaron and M. F., that they would buy in the land for her and allow her to redeem it at the price paid by them. The complaint also alleges that $506 paid to Aaron by Mrs. Bramlett was in full of pi’incipal and interest for the amount advanced by him and paid by him for himself and M. F. for the whole tract. This payment was evidenced by a receipt in these terms : “Gainesville, Ga., January 11th, 1864. Received of Martha A. Bramlett $506, and for which A. and M. F. Whelchel is to make her a deed to part of lands 107 and 116, to the amount of 150 acres, in the 11th district of Hall county, Georgia. “A. Whelchel.” The reasonable and natural construction of this receipt is, that the payment was for the 150 acres only, whereas the whole tract contained 350 acres. Moreover, the amount was not sufficient to cover the princi [88] pal and interest of the payment made by Aaron and M. F. for the land when bought in for Mrs. Maddox. Their purchase was made in November, 1860, at the price of $435, and the administrator from whom they bought testifies that the land was sold for cash. To a mathematical certainty, therefore, the payment covered by the receipt was not for the whole tract; or if so, the settlement was not upon the basis either of -refunding the principal only, or of refunding both principal and interest. 2. Another consideration is, that even if Aaron received payment for the whole tract, and recognized the right of his sister, Mrs. Maddox, to a conveyance, this, as it appears to us, would not divest his brother, M. F., of title to his half of the land. That M. F. advanced half of the purchase money to pay for the land at administrator’s sale, although he advanced it. to Aaron a ter the deed was taken, is quite certain : and it is equally certain under the evidence, that he got none of it back. No authority appears in the record from him to Aaron to collect his part of the purchase money from Mrs. Bramlett or Mrs. Maddox; and while, as it seems, he ratifies the payment made by Mrs. Bramlett, taken and understood according to the receipt, we see nothing that obligated him t.o treat it as a payment for the whole tract. If he had notice of it as such and ratified it, that would bind him; but without such notice we see not how he would be affected by it. The receipt stipulates for nothing more in his behalf than to join with Aaron in conveying one hundred and fifty acres to Mrs. Bramlett, — and this we understand he is not resisting ; but to deprive him of his half of the residue of the tract without his being paid for it, would seem to be contrary to law and equity. ’As the title to half the tract was in him, he had a right to repose upon its remaining there until it passed out by his consent. The [89] possession of his sister, Mrs. Maddox, would not be adverse to that title, until he received notice that she was claiming the land as her own, and not occupying it by virtue of the arrangement made with the brothers when it was bought in at the administrator’s sale. Her possession was permissive until she redeemed the land from those holding the legal title, or until she gave notice to both of them that she repudiated the contract to redeem and intended to hold independently of-it. That she paid taxes can be well accounted for on the ground that she had the exclusive use of the land until she died in 1885, and received all the profits. It must not be overlooked that according to the pleadings of the plaintiffs below, M. F. was as much a party to the agreement with Mrs. Maddox as Aaron was. The land was to be redeemed as to his interest, as well as to that of Aaron ; and the question which presses now is, how was the half-interest of M. F. redeemed, and when? It seems that Aaron got something for his, — at least to the extent of one hundred and fifty acres; but how and when did M. F. get anything for his interest? We think the case should be tried over for an answer to this question at least. Judgment reversed.